A road map for 2022-23 - Courts and Tribunals Judiciary

A road map for 2022-23

On 1 June 2020, we issued a joint “road map” for listing and hearing cases in the
two Employment Tribunal jurisdictions in the face of challenges presented by the
Covid-19 pandemic. In March 2021, we issued a road map for 2021-22. In view of
the challenges that continue to confront us, we have decided to issue a further
document explaining what we anticipate happening in the 2022-23 financial year.

The metaphor of a “road map” remains valid, not least because of the twists and
turns we expect to encounter as we journey forward and in recognition of the
likelihood that some stretches of the road ahead will be bumpier than we might
like.

A brief retrospective

We recognise that the jurisdictions we lead are far from perfect, and that many
areas of concern pre-date the pandemic or are unrelated to it. The turnover level
of HMCTS staff remains a worry. Waiting times are too long in parts of the
country. In some locations, our physical estate is too small, too frail, or both.
ECM, the new case management system for Employment Tribunals introduced by
HMCTS in the spring of 2021, has so far failed to produce reliable management
data. Accurate information on system performance has not been published by
HMCTS for many months. We therefore have no reliable information on matters
such as the size of the outstanding caseload. While recognising the pressures
under which our colleagues in HMCTS work, we cannot be anything other than
immensely frustrated by the ongoing data silence. It impairs strategic and
operational decision-making.

However, there are many positives to report. Our legal officers recruited in 2021-
22 have settled into their role and are delivering significant improvements in
service. More have been recruited since, and there are plans to continue doing so.
South of the border, the same period saw the recruitment of nearly 150 new fee
paid Employment Judges and the cross-assignment of about 40 (mostly fee paid)
judges of the First-tier Tribunal. The “virtual region” in England and Wales has
been going for nearly a year and has successfully handled hundreds of cases that
would otherwise have been postponed for lack of a judge. The adaptability of the
Employment Tribunals judiciary has been shown by the high number of hearings
taking place on video, and which would otherwise not be taking place; the two ET

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jurisdictions regularly spend 2,000 to 3,000 hours a week on the HMCTS Cloud
Video Platform (CVP).

We again offer our heartfelt thanks to all those – judges, non-legal members and
HMCTS staff members – who have continued to support the ongoing
administration of workplace justice during times of unprecedented challenge.

HMCTS reform

In an ideal world, 2022-23 would provide a period of consolidation. However, if
anything, the pace of change will increase. This is because the Employment
Tribunals are now in the grip of the modernisation process known as the HMCTS
Reform Programme.

In the context of the Employment Tribunals, HMCTS reform aims to take
longstanding paper-based processes and make them digital, resulting in an
electronic system of case data that better serves judiciary, staff and our system
users.

Instead of sending and receiving letters and emails to and from our various
regional offices and hearing centres, parties and their representatives would
access their case information through a portal designed for that purpose. In the
case of legal representatives, the MyHMCTS portal will be used. If all goes well,
HMCTS intends this to become the primary means of communication with the
Tribunal, allowing for automated updates. South of the border, some
administrative work will be done from Court and Tribunal Service Centres
(CTSCs), which will also operate as the frontline for telephone enquiries.
(Scotland already has a variety of functions centralised in Glasgow, including
initial telephone enquiries.) There will be an element of automation in the listing
process, through a platform known as ListAssist (although listing policy will
remain fundamentally a judicial concern). HMCTS intends for the replacement
platform for CVP, the Video Hearings service, to be rolled out to the Employment
Tribunals and other parts of the justice system during 2022. HMCTS will offer
digital support services to users, while paper channels will remain open for those
unable to access the reformed systems.

These systems will be genuinely transformative.

The leadership judiciary of the Employment Tribunals regularly engage with
HMCTS on all reform topics, in order to safeguard the proper administration of
workplace justice. Our users can be assured that it is our shared desire for the
reform process to enhance, not impede, access to justice. All judicial
contributions to reform discussions have that end in mind.

HMCTS have agreed to ensure that system users are consulted via the
membership of the respective national user groups.

The reformed system will be rolled out in stages. HMCTS intends for it to begin
with open track cases involving unrepresented claimants. There will be a new
online service for submitting claims and responding to them. Much remains to be
decided. We will inform system users of material developments via our respective
national user groups.

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Video hearings

There can be no return to the pre-2020 “normal” in the Employment Tribunals.
This is because “normal” ways of working will be changed permanently by
HMCTS reform, regardless of the impact of the pandemic. However, there is one
area where we do wish to take a few steps back, and that is in respect of our
reliance on video.

At the moment, the majority of hearings across Great Britain are still taking place
on a fully remote basis. Indeed, in some parts of the country, over 90% of
hearings are still by video. We want to bring that percentage down. It is driven
chiefly by Covid restrictions or estate limitations. That said, we accept that, in
some cases, a video hearing reflects the preferences of the parties and, if they
have them, their legal representatives. It can be less costly and less disruptive to
the lives of those participating.

Our shared view remains that justice is best experienced by the vast majority of
individual litigants in a face-to-face environment. How do we reconcile the purity
of that aspiration with the stark reality of our resources, and with the need to
respond rapidly to the changing circumstances of the pandemic? We think the
answer is found in pragmatism. As we said in our last road map, we do not think
the solution is to adopt one method to the exclusion of another. We must build on
what we have learned over the last two years by recognising that a mixture of
platforms (video, hybrid and in-person) will subsist. Pragmatism demands that
video remains an essential tool in helping us tackle our outstanding caseload and
bring down waiting times, because it effectively triples the size of the estate
available to us.

We turn now to discuss the coming financial year.

2022-23
Different Employment Tribunal regions, and different parts of Britain, may need
to move at different speeds, just as was the case with our 2021-22 road map. This
is because of the variable resources available to the Employment Tribunals across
Britain, whether that be the number of usable hearing rooms, the number of
judges, the quality of the estate, the type of IT equipment that is available to
support remote or hybrid hearings, and the share of the outstanding caseload/
waiting times pertaining to that region.

We qualify what we say below by emphasising that: (1) in every case it will be
open to a judge to decide, in the interests of justice, that the default position
below should not apply; and (2) it will always be possible for a party to apply to
the Tribunal with a request for their hearing to be held using a different format.

The appropriate format for a hearing remains a judicial decision, taken in the
light of the Tribunal’s overriding objective. Our respective guidance documents
remain valid in identifying the relevant considerations that apply1.

1See paragraphs 16 and 17 of the Presidential Guidance applicable in England and Wales here
and paragraphs 8 and 9 of the Practice Direction applicable in Scotland here.

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Subject to what is said above and periodic review, the position is as follows:

•    Preliminary hearings listed in private for case management purposes will
     continue to default to telephone or video. This is likely to become
     permanent.

•    Preliminary hearings in public to determine a straightforward preliminary
     issue (e.g., time limits in an unfair dismissal case) will continue to default to
     video. This is likely to become permanent. Complex preliminary points
     requiring more detailed evidence (e.g., the application of TUPE, whether a
     person is disabled for Equality Act purposes, employment status) will,
     subject to local estate resources, make greater use of in-person hearings.

•    Preliminary hearings to consider an application to strike out or for a deposit
     order will continue to default to video. This is likely to become permanent.

•    Applications for interim relief will continue to default to video. This is
     likely to become permanent.

•    Judicial mediations will continue to default to video (although, in some
     parts of England, telephone mediation will continue). We will keep a close
     eye on outcomes to determine whether this becomes permanent.

•    Final hearings of short track claims (unpaid wages, notice, holiday pay,
     redundancy pay etc) will, for the time being, continue to default to video.
     However, subject to local estate resources, there will be greater use of in-
     person hearings where the case involves significant disputed evidence.

•    Final hearings of standard track claims (unfair dismissal) will vary. In most
     parts of Britain, as the physical estate recovers and requirements for social
     distancing are removed, we wish them to return in greater numbers to in-
     person, especially where the case involves significant disputed evidence.
     This will take time, because recovery will not be uniform. In parts of the
     country where the backlog is greatest, especially in London and the South
     East, final hearings of standard track claims will continue to default to
     video, to enable maximum use of judges in the virtual region.

•    Our firm wish is for final hearings of open track claims (discrimination and
     whistleblowing) to default to in-person. This is achievable in Scotland,
     where it will be the default approach. However, it is not achievable in all
     parts of England and Wales. In some locations, such as London and the
     South East, the size of the backlog demands the increase in capacity that
     video can deliver, including through the virtual region. In other locations,
     such as Wales, there is a lack of hearing rooms. For the time being, and
     while we continue to press for more resources, there will be greater reliance
     on video in such locations, including hybrid formats. We repeat that, in all
     cases, north and south of the border, the parties will still be able to express
     their views at the preliminary hearing held for case management purposes,
     having regard to our respective guidance documents.

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•    Other hearings listed specifically to deal with applications for
     reconsideration or costs/expenses will default to video. This is likely to
     become permanent.

These defaults operate for listing purposes only. We again emphasise that parties
can apply to the Tribunal for a different approach; this may result in a change of
format or, indeed, a hybrid approach in which one or more of the participants
(including members of the panel) joins remotely.

The Employment Tribunals could not have continued to deliver workplace justice
over the last two years without the sterling efforts of our judges and non-legal
members, the dedicated support of HMCTS staff, and the cooperation of system
users. For this, we are truly grateful. We close by thanking you for bearing with us
during difficult times.

Judge Barry Clarke                            Judge Shona Simon
President of Employment Tribunals             President of Employment Tribunals
(England and Wales)                           (Scotland)

                                  31 March 2022

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